Saturday, July 23, 2005

D.C. District Court judge Gladys Kessler yesterday granted the motion of six anti-smoking groups to intervene in the DOJ tobacco lawsuit. The groups, which include the Tobacco-Free Action Fund (an arm of the Campaign for Tobacco-Free Kids), the American Cancer Society, the American Lung Association, the American Heart Association, and Americans for Nonsmokers' Rights, will be permitted to file briefs related to their suggested remedies should the tobacco companies be found guilty of RICO violations.

In a press release, the Campaign for Tobacco-Free Kids (TFK) stated: "It is unfortunate that the government has failed to call for the strongest remedies possible in order to protect the public health. However, with Judge Kessler’s decision today, we look forward to putting on the strongest case possible."

William Corr of the Campaign for Tobacco-Free Kids was quoted as stating: "The government is no longer representing the health interests of the American people. Our organizations will do so."In response to Kessler's ruling, Philip Morris' associate general counsel William Ohlemeyer was quoted as saying: "This case is not a public policy forum, and regardless of how well intentioned the intervenors positions are, they reflect a profound misunderstanding of the facts and the law that must be considered in deciding this case."

The Rest of the Story

I have to admit that I find myself in the strange position of having to agree 100% with William Ohlemeyer of Philip Morris. He is right - this legal case is not a public policy forum, as the intervening public health groups appear to think. And I do believe that these anti-smoking groups have demonstrated a profound misunderstanding of the law that must be considered in deciding the case.

Just look at what TFK states in its press release: "the government has failed to call for the strongest remedies possible in order to protect the public health." Well, neither has the Campaign for Tobacco-Free Kids. The strongest remedy possible would be to close down the tobacco business. That would certainly restrain and prevent future RICO violations. But there's just one problem: it is not consistent with the law.

What groups like TFK appear not to understand is that this case is not about what remedies would be most effective in protecting the public health. Protecting the public health is not the objective of the case. The objective is more narrow than that: specifically, it is to achieve justice under the law, which in this case is the RICO statute, as interpreted by Judge Kessler and by the D.C. Court of Appeals, whose decision currently governs the case. So the objective is to fashion remedies not that are effective public health measures, but that are effective ways to prevent and restrain future RICO violations under the law.

And in order to be permissible, such remedies must be forward-looking remedies that aim to prevent and restrain future violations. The key remedy that TFK and other groups are seeking is one which would require the companies to pay $130 billion for a smoking cessation program for current smokers. Clearly, this is not consistent with the law governing the case because it is a backwards-looking remedy designed to redress past industry wrongs, not prevent future wrongs.

Anti-smoking groups really are treating this as a public health policy forum, not a court of law. And Ohlemeyer is right - that doesn't necessarily reflect bad intentions, but it does reflect a misunderstanding of the issues that the court must consider in deciding the case.

Perhaps the biggest fallacy of TFK's argument is that by requesting bigger remedies (i.e., more money), it will be "putting on the strongest case possible." On the contrary, requesting more money for a remedy that is inconsistent with and not allowable under the law does not strengthen the case. If anything, it weakens the case by making a mockery of the government's arguments in the case.

When and if it the case gets to the D.C. Court of Appeals, that court is not going to look favorably on the government's nearly complete disregard for its ruling. It's like when one of my students ignores the instructions on an assignment. You can't expect to get a good grade when you don't follow the clear instructions. And until recently, the Department of Justice was not following the instructions. The anti-smoking groups are still not following the instructions and, unlike the Justice Department, they don't even appear to be aware that those instructions exist (or else they are just completely ignoring them).

I can't close without noting the tremendous irony of TFK's statement that it will represent "the health interests of the American people." This from an organization that is representing the best interests of the nation's leading tobacco company - Philip Morris - by helping lobby for the FDA legislation, which is Philip Morris' chief legislative priority for the 2005 Congressional session.

I wouldn't trust the Campaign for Tobacco-Free Kids to represent the health interests of the American people if they were the last health group standing.

The rest of the story suggests that William Ohlemeyer has the anti-smoking groups pegged just about right: they may be well-intentioned in seeking effective public health measures to reduce tobacco use, but they are demonstrating a profound misunderstanding of the law."

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About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 32 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.